[2017] KEHC 5888 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 151 OF 2015

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

BETWEEN

REPUBLIC……………………………………..….………………..APPLICANT

VERSUS

CHIEF MAGISTRATE’S COURT NAIROBI…………… …….....RESPONDENT

EXPARTE

1. JEFF KOINANGE

2. TONY GACHOKA

AND

KWACHA GROUP OF COMPANIES……..…......1ST INTERESTED PARTY

JIMI WANGIGI……………………………..……….2ND INTERESTED PARTY

SANI MBUI WANJIGI…………………….………..3RD INTERESTED PARTY

SANI SHOLLEI……………….…………….....…....4TH INTERESTED PARTY

JEFF KOINANGE…………………………………..5TH INTERESTED PARTY

KENYA TELEVISION NETWORK…….……….....6TH INTERESTED PARTY

STANDARD GROUP LIMITED…………………....7TH INTERESTED PARTY

TONY GACHOKA……………………………..……8TH INTERESTED PARTY

NATION MEDIA GROUP LIMITED……….....…...9TH INTERESTED PARTY

YOU TUBE…………………………………..…….10TH INTERESTED PARTY

JUDGMENT

1. On 5th June 2016, Honourable M. Chesang (Mrs) Resident Magistrate found the exparte applicants herein JEFF KOINANGE AND TONY GACHOKA in contempt of court orders issued on 23rd March 2015 by Honourable R.A. Oganyo (Chief Magistrate) and convicted them. She imposed on each of the two contemnors a sum of shs 2,000,000 and in default to serve six months imprisonment, for disobeying court orders of injunction.

2. However, before that application for contempt was heard and determined by the subordinate court, the exparte applicants herein had moved to this court vide their chamber summons dated 14th May 2015 seeking for:

"C. leave to be granted to the exparte applicants to apply for Judicial Review orders of certiorari to remove into the High Court and quash the decision of the Resident Magistrate Milimani purporting to exercise powers of the Chief Magistrate given on 13th May 2015 ordering the applicant to be arrested;

D. leave be granted to apply for Judicial Review orders of prohibition prohibiting the said Chief magistrate’s court or any other subordinate court from further hearing the CM’s Court Civil Case No. 1436 of 2015 between Kwacha Group of Companies, Jimi Wanjigi, and Sani Mbui Wanjigi who are the plaintiffs and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Limited, Tony Gachoka, Nation Media Limited and You Tube who are the defendants;

E. That the grant of leave pursuant to prayers C and D above do operate as a stay of any further proceedings in the said Chief Magistrate’s court civil suit No. 1436 of 2015; and

F. Costs of the application.

3. The application for leave to apply for Judicial Review orders was heard and determined by Honourable Korir J who delivered a ruling on 20th May 2015 granting leave to apply and directing that the substantive motion be filed and served within 7 days from 20th May 2015.

4. The learned judge declined to order for stay of proceedings pending before the subordinate court and it is for that reason that while these Judicial Review proceedings pursuant to the leave granted on 20th May 2015 were pending that the Resident Magistrate Mrs. Chesang Resident Magistrate ) continued to hear and determine CM’s Court Civil Case No. 1436 of 2015 which areproceedings relating to contempt of court against the exparte applicants herein and made a determination on 5th June 2015 convicting the exparte applicants herein for contempt of court and fining them shs 2 million each and in default, to serve 6 months imprisonment.

5. In the substantive notice of motion dated 26th May 2015, the exparte applicants in reference to the leave granted by Honourable Korir J to apply for Judicial Review orders as per the chamber summons dated 14th May 2015, sought the following orders:

a) An order of Certiorarido issue to remove into the High Court and quash the decision of the subordinate court in the Chief Magistrate’s Court civil case No.1436 of 2015 between Kwacha Group of Companies Ltd, Jimi Wanjigi, Sani Mbui Wanjigi Plaintiffs and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Limited, Tony Gachoka, Nation Media Group and You Tube citing the defendants for contempt of court and thereafter issuing warrants of arrest against Jeff Koinange and Tony Gachoka

b) An order ofProhibition do issue prohibiting the said subordinate court in Chief Magistrate’s court civil suit No. 1436 of 2015 from further hearing of the said suit;

c) Costs of the application be paid by the plaintiff in the said Chief Magistrate’s Court Civil Case No. 1436 of 2015.

6. The application for the two Judicial Review orders of Certiorari and Prohibition is supported by the statutory statement and affidavits of Jeff Koinange and Tony Gachoka both dated 14th May 2015 as filed with the chamber summons for leave to apply.

7. The grounds and facts upon which the application for Judicial Review application are predicated are as detailed in the statutory statement dated 14th May 2015 which are essentially:

1. That there are pending civil proceedings before the Chief Magistrates court namely CM CC 1436 of 2015 wherein Jimi Wanjigi and Another sued the exparte applicants for hosting‘ “JK Live”talk show on 12/13 March 2015 and discussing and mentioning the said Jimi Wanjigi as being responsible for Anglo leasing Scam;

2. That the above suit notwithstanding, there is a similar suit HCC 269 of 2014 over the same subject matter affecting the hosting of the same show on 15th May 2014 to dismiss the topical issue of corruption on KTN Television;

3. That in the verifying affidavit of Jimi Wanjigi in support of the plaint in CMCC 1436/2015, he did not disclose that there was another suit pending in the High Court, being HCC 269 of 2014, and wherein the plaintiff sought substantially similar prayers;

4. That on the same day that CM CC 1436/2015 was filed, there was an order made on the notice of motion filed seeking to cite the exparte applicants herein among others for contempt of court for allegedly disobeying court orders made on 20th March 2015 by Honourable R.A. Oganyo (Mrs.) Chief Magistrate, which are alleged to have been served upon the exparte applicants together with the penal notice endorsed which depositions of the affidavits supporting that motion were false;

5. That when the motion for injunction came up for interpartes hearing, on the 20th April 2015 exparte applicants raised two preliminary objections which were disallowed by Honourable Chesang without disclosing the circumstances the court file had been placed before her even though the exparte orders of 20th March 2015 had been issued by the Chief Magistrate.

6. That when Honourable Chesang made the orders disallowing the two preliminary objections raised by the exparte applicants, she also directed that the alleged contemnors be in court on 13th May 2015 when she scheduled to hear the notice of motion interpartes;

7. That upon such a directive requiring the attendance of the exparte applicants, there was an obligation on the court to direct that summons to issue against the alleged contemnors on account of the matter having penal consequences but that no such summons were issued nor did counsel for the plaintiff/applicants in the notice of motion apply for the issuance of the same;

8. That when the matter came up for hearing on 13th May 2015 the exparte applicants were not present because they had not been served with summons and secondly, their advocate ( Senior Counsel Mr Gitobu Imanyara was unable to attend court following the flooding the previous night and its inconvenience such that he only reached home at 5. 00am. He therefore send a message to Mr Gitonga advocate to hold his brief and seek for an adjournment;

9. That despite the court being informed of the above circumstances the court ordered for the arrest of the two exparte applicants.

8. On 21st October 2015, the exparte applicants filed an amended notice of motion dated the same day seeking the following orders in addition to the orders sought in the earlier application for judicial review dated 26th May 2015:-

1. An order of certiorarito remove into the High Court and quash the decision of the Resident Magistrate Milimani purporting to exercise powers of the Chief Magistrates court given on 13th May 2015 ordering that the appellant be arrested;

2. An order for certiorarito remove into the High Court and quash the contempt of court proceedings in Nairobi Chief Magistrate’s court civil case No. 1436 of 2015 before the Resident Magistrate Milimani and the decision of 5th June 2015 by which the learned Resident Magistrate found the exparte applicants in contempt and imposed upon them a fine of shs 2,000,000 and in default a prison term of six months.

3. An order of prohibitionprohibiting the said Chief Magistrate’s Court or any other subordinate court from further hearing the Chief Magistrate’s Court civil case No. 1436 of 2015 between Kwacha Group of Companies, Jimi Wanjigi and Sani Wanjigi who are the plaintiffs and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Limited, Tony Gachoka, Nation Media Limited and You Tube who are the defendants;

4. An order that the sum of shs 2,000,000 paid by the 1st exparte applicant pursuant to the orders of 5th June 2015 by the Resident Magistrate in Nairobi CM CC 1436/2015 be forthwith returned to the 1st exparte applicant;

5. An order that costs of this application be awarded to the exparte applicants.

9. The grounds upon which the new (amended) application was premised are that;

a) The magistrate in entertaining contempt proceedings acted ultra vires the Constitution of Kenya as read together with the Judicature Act;

b) She acted in excess of her jurisdiction and proceeded on the basis of a profound jurisdictional error.

c) She condemned the exparte applicants without the benefit of a hearing contrary to the tenets of natural justice;

d) She made fundamental errors of law.

e) Made fundamental errors of fact.

f) Ignored pertinent and material facts.

g) Exhibited bias against the exparte applicants.

h) Acted in abuse of power.

i) Misinterpreted the law and applied the same disproportionately to the extreme detriment of the exparte applicants.

10. The application is stated to be supported by the statutory statement dated 14th May 2015 and verifying affidavits of Jeff Koinange and Tony Gachoka as annexed to the exparte chamber summons for leave filed on 15th May 2015 and supplementary affidavit of Jeff Koinange sworn on 21st October 2015.

11. The exparte applicants’ notice of motion as amended on 21st October 2015 was opposed by the interested parties vide a replying affidavit sworn by Mr Sani Mbui Wanjigi on 2nd December 2015 contending that the notice of motion by the exparte applicants as amended is mischievous, has no merits, is baseless, frivolous, and an abuse of the court process for the following reasons:

a) The application does not fall within the purview of the special powers of the Judicial Review court;

b) The Judicial Review court is not an appellate court and the issues raised in the application should be heard and determined by the appellate Civil Division of the High Court;

c) That Judicial Review remedies are only available to a party who has no other avenue of redress but the exparte applicants have other avenues of redress/addressing the issues raised and the issues raised can be addressed appropriately through the appellate Division of the High Court/appellate process;

d) That the exparte applicants are seeking an equitable remedy but they do not deserve the same as they do not have clean hands because they blatantly and on several occasions disobeyed court orders issued by the subordinate court and also committed contempt of court in the face of the court and consequently they do not deserve the court’s discretionary powers;

e) The subordinate court has express powers under Section 63 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 40 Rules 3 of the Civil Procedure Rules to punish a contemnor for contempt of court in case of disobedience of an injunction;

f) That the grounds supporting the application for Judicial Review application are too general and not supported by evidence or at all;

g) That the exparte applicants were at all times given a fair hearing before the subordinate court and that Tony Gachoka was given 30 minutes to address the court before a ruling was delivered;

h) That the exparte applicants were served with the orders which they blatantly disobeyed;

i) That the exparte applicants were at all material times represented by their advocates hence their allegations are false, misleading and meant to seek and win unnecessary sympathy from the court;

j) That adverse allegations against the conduct of the subordinate court are false, made in bad faith and the court proceedings are evident;

k) That the 2nd exparte applicant was served by way of substituted service as ordered by the court on 20th March 2015 hence allegations that he was not served are misleading since he admitted on the “JK Live” show interviews which formed the basis of the court proceedings that he was aware of the court order but that he contemptuously stated that he was going to keep talking notwithstanding the court order and case;

l) That even after the exparte applicants appointed their advocates to come on record for them, they continued to blatantly disobey court orders even in the face of the court;

m) That Jeff Koinange was at all material times the agent /servant of the 5th and 6th interested parties and that he had been duly served with the court order.

12. The 9th interested party also filed a replying affidavit contending that she was wrongly condemned for being in contempt of court as she was a mere legal officer who received the order on behalf of the company.

13. All the parties’ advocates filed written submissions to advance their respective clients' rival positions. They also relied on case law which they annexed to their submissions. The 1st exparte applicant filed skeletal submissions which replicated averments in the notice of motion and sworn affidavit. The 2nd exparte applicant filed written submissions on 8th March 2016 and further submissions on 27th April 2016.

14. The 1,2, 3rd interested parties filed their written submissions on 14th April 2016. The 9th interested party filed her submissions on 26th April 2016 which are in support of the prayers sought by the exparte applicants and which have all been considered by this court.

15. Parties’ advocates fully relied on the written submissions and affidavits in canvassing the merits of the application with skeletal highlights of their written submissions by the 9th interested party.

16. According to the exparte applicants, judicial review orders sought are available to them pursuant to Article 165(6) of the Constitution which confers jurisdiction on the High Court to supervise the subordinate courts to ensure that the jurisdiction of the subordinate court is exercised properly. Reliance was placed on R.V National Transport &Safety Authority &10 others Exparte James Maina Mugo [2015]eKLR which case sets out grounds for judicial review applications namely, "illegality; irrationality or unreasonableness; and procedural impropriety” and goes further to explain what each of those grounds mean.

17. It was submitted that the applicants' amended notice of motion dated 21st October, 2015 sought to quash the decision of the Resident Magistrate because she had no jurisdiction in making the orders that she did-that of ordering for the arrest and imprisonment of the applicants if they failed to pay the imposed fines of kshs 2 million; that she acted ultravires the Constitution; acted in excess of her jurisdiction; proceeded on profound jurisdictional error; condemned the applicants unheard; made errors of law and fact; was biased towards the applicants; acted in abuse of power; misinterpreted the law; and acted disproportionately to the extreme detriment of the exparte applicants.

18. It was submitted on behalf of the exparte applicants that they had sought for judicial review orders of prohibition prohibiting the Resident Magistrate from hearing or further hearing CMCC No 1436 of 2015 on account that the Resident Magistrate had no jurisdiction to hear and determine the proceedings before her which proceedings related to contempt of court. Reliance was placed on CA No. 135 of 2013 Exclusive Estates Limited and the Registrar of Titles Nairobi and Others wherein the court made it clear that judicial review does not challenge the merits but the decision making process itself. Further reliance was placed on the case of Benjoh Amalgamated Limited &Another v KCB Limited [2014]eKLR on inherent powers of the court to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.

19. It was further submitted that the trial court lacked jurisdiction to hear and determine contempt of court proceedings against the exparte applicants and that only section 5 of the Judicature Act Cap 8 of Laws of Kenya which was the substantive law on contempt of court confers upon the superior courts power and jurisdiction to punish for contempt.

20. Further, that albeit some High Court decisions like in the case of Africa Management Communications Limited v Joseph Mathenge Mugo& Another [2013]eKLR suggest that there exists a different type of contempt proceedings under the Civil Procedure Act in section 63 and Order 40 rule 3 of the Civil procedure Rules limited to injunctions, the court of Appeal in 2015 in the case of Shimmers Plaza Limited v National Bank of Kenya[2015]eKLR conceded that the law of contempt in Kenya is underdeveloped and has to be overhauled in line with the Constitution of 2010.

21. It was submitted that as things stood in Kenya, we have to rely on the Judicature Act and the Rules in England for guidance.

22. On whence the jurisdiction of the courts emanate from, reliance was placed on the Supreme Court decision in the Re the Matter of the IIEC, SC App No. 2 of 2011;[2011]eKLR and in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited [2012]eKLR where the court made it clear that a court's jurisdiction emanates from the Constitution or legislation or both and such a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of the legislation is clear and there is no ambiguity.

23. It was further submitted that the trial magistrate in her impugned ruling conceded that the power to punish for contempt of court was under section 5 of the Judicature Act vested in the superior courts of the High Court and the Court of Appeal and that it applies to all forms of contempt yet she went ahead and determined that she had jurisdiction to punish for contempt of court and proceeded to punish for contempt by distinguishing the above provisions with section 63 of the Civil Procedure Act. It was submitted that in doing so, the trial magistrate was engaging in what was prohibited by the Supreme Court which is judicial craftsmanship and or assumption of jurisdiction by using a general provision under the Civil Procedure Act to override the specific provision under the Judicature Act.

24. Further reliance was placed on the Article written by the former Chief Justice Evans Gicheru entitled" Independence of the Judiciary: Accountability and Contempt of Court Opines " where the learned Chief Justice made it clear that it was an undoubted right of the Superior Courts to punish for contempt of Court.

25. Further reliance was placed on this court's decision in Sam Nyamweya &3 others v Kenya Premier League&2 others[2015]eKLRwhere the court was guided by the Rules in England in determining whether there was contempt of court committed by the respondents in that case.

26. It was further submitted that the new section 10 of the Magistrates Courts Act, 2015 which now confers jurisdiction on the Magistrates Court to punish for contempt of court was enacted upon realization that there was an existing gap in the law regarding the jurisdiction of Magistrates’ courts to punish for contempt.

27. It was further submitted that the applicants' right to a fair hearing as espoused in Article 50 of the Constitution which right cannot be limited was violated and that the trial magistrate was biased against the applicants, with the test of bias being found in the case of Magil v Porter[2002]2AC 357. In this case, it was contended that the refusal by the magistrate to grant an adjournment even after reasons were given after which she went ahead and imposed an excessive fine on the applicants was a demonstration of bias. Further, that the trial magistrate focused her attention in contempt proceedings on the two applicants despite the fact that before her were several other personalities for contempt hence bias was manifest. Reliance was placed on RV Sussex Justices Exparte Mc Cathy [1924]1KB 256.

28. The applicants further lamented that fair procedure was not followed in that: the applicants were neither served nor the order allegedly breached brought to the attention of the 2nd applicant considering the gravity of contempt proceedings; the conduct of the trial magistrate including delivery of the ruling behind closed doors on Friday past official working hours with the media being locked out and an exorbitant fine being imposed on the applicants and their counsel's plea for more time to comply rejected all go to show that she was vindictive and that she was determined to punish them for contempt of court; she failed to consider the statements on oath by the applicants and singled them out of the many alleged contemnors; and that the fine imposed on the applicants was manifestly excessive considering precedents on contempt.

29. It was further submitted that the 2nd applicant was never served with the impugned order and that there was no proof of contempt of court beyond reasonable doubt as was held in the Sam Nyamweya (supra) case and the Article by Hon CJ Gicheru which is indicative of that position.

30. It was further submitted that the trial magistrate did not indicate in her ruling the specific orders of the court and the specific acts of the applicants in defiance of the order which was allegedly disobeyed.

31. The 1st, 2nd and 3rd interested parties seriously opposed the exparte applicants’ application for judicial review orders as sought in the amended notice of motion dated 21st October, 2015 contending that the application was mischievous, has no merit, is baseless, frivolous and an abuse of the court process because of the following reasons:

1. That judicial review is concerned with the reviewing not the merits of the decision in respect of which the application for judicial review is made but the decision making process itself;

2. It was submitted that judicial review is a special court with specific powers and is only available to deserving cases and that the exparte applicant's application does not fall within the purview of the specific/special powers of the judicial review court. Reliance was placed on CA No. 135 of 2013 between Exclusive Estate Limited and the Registrar of Titles (supra); RV Vice Chancellor JKUAT, EXPARTE Cecilia Mwathi &Another Misc 30/2007;RV Secretary for Education and science exparte Avon county council(1991) cited i Commissioner of Lands v Kunste Hotel Limited 234/95; and BAM Shah &Another v R &3 others [2013]eKLR ca 186/2006; Council for Civil Service Unions v Minister for Civil Service[1985]A.C 374 at 401 D; Municipal Council of Mombasa v R exparte Umoja Consultants Ltd CA 185 of 2001which decisions espouse the above principle and the scope and purview of judicial review.

3. It was submitted by the 1,2 and 3 interested parties that judicial review court is not an appellate court and that the issues raised by the applicants should be raised and considered by the appellate Civil Division of the High Court.

4. In addition, it was contended that judicial review remedies are only available to parties who have no other avenue of redress unlike the applicants herein who have an avenue of an appeal.

5. The interested parties further submitted that the exparte applicants had not come to court with clean hands in that they seek an equitable remedies yet they had on several occasions blatantly disobeyed court orders issued by the subordinate court and also committed contempt of court in the face of the court hence were undeserving of the court's discretionary powers.

6. According to the interested parties, the subordinate court has express powers under section 63 of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules to punish the contemnors for contempt of court in case of a disobedience of an injunction.

7. In addition, it was submitted that the grounds upon which judicial review orders are sought are too general, have no basis or merit and not supported by any evidence or at all. The court was urged to scan through the typed proceedings of the lower court which are unequivocally clear and disapprove all the grounds/allegations upon which the exparte applicants are basing their application. That those proceedings show that the applicants were given a fairs hearing and that for Tony Gachoka he was given 30 minutes to personally address the court before the ruling was delivered.

8. That the exparte applicants and affected parties were all served with the court orders which they disobeyed blatantly. and that the said exparte applicants were at all times represented by their advocates and any allegations to the contrary are false, misleading and meant to seek and win unnecessary sympathy from this court.

9. Further, that adverse allegations against the subordinate court's conduct are false and made in bad faith and the court proceedings vindicate that position.

10. That it is not true that on 13th May, 2015 Mr Gitobu Imanyara the applicants' advocate was denied any hearing but that he failed to turn up in court and instructed Mr Gitonga to hold his brief hence his clients were in no way prejudiced by his absence.

11. It was further submitted that all the applicants were served with the court order which they disobeyed and that Tony Gachoka was served by way of substituted service in the Daily Nation as ordered by the Court on 20th Marc h, 2015 hence his allegation that he was not served is meant to mislead the court as he even admitted on "JK LIVE" show which formed the basis of contempt proceedings that he was area of court orders but that he contemptuously disobeyed them by saying on live show that he was going to keep talking notwithstanding the court order and the case, and that the two applicants discussed the case on live show.

12. That even after appointing advocates to come on record on their behalf, the exparte applicants continued to violate court orders in the face of the court.

13. That the 9th interested party was personally served with the order and penal notice on her own behalf and on behalf of her employer and other and that she duly signed on the court order to a knowledge service and that Jeff Koinange, the 4th and 9th interested parties were servants/agents of the 5th and 6th interested parties and they had been served with the order directly.

14. The 1, 2 and 3 interested parties urged the court to dismiss the exparte applicants' motion with costs to the 1, 2, 3 interested parties.

15. The 9th interested party who is an employee of the 5th and 6th interested parties, holding the position of Senior Legal Officer submitted that she 9th interested party is not a party to CMCC No. 1436 of 2015 but was never the less held in contempt of court on 5th June 2015 by the Resident Magistrate M. Chesang (Mrs) as a result of receiving a court order on behalf of the 1st exparte applicant, Jeff Koinange and the 4th, 5th and 6th interested parties.

16. According to her, she received the court order and endorsed it by stamping it with the stamp of the 6th interested party in her capacity as the legal officer and not in her personal capacity.

17. She contended that nothing in the order was directed to her as the legal officer neither was it directed to her in her personal capacity, and it was unjust for the court to hold her in contempt of court for simply receiving the court orders.

18. That subsequent to receiving the orders, no other court document concerning this case had been served upon the her either in her personal or professional capacity as the legal officer for the 5th and 6th interested parties.

19. That however on the 13th May 2015 the date of hearing of the application for contempt of court the advocate for the 9th interested party ( Mr Wambugu Gitonga) was ordered by court to proceed notwithstanding the fact that service had not been effected.

20. It was submitted on her behalf that it is trite law that a contempt of court application be served personally on the person being cited for contempt of court and the advocate for the respondent did not even claim to court that he had served the 9th interested party nor her advocate with the application for contempt to warrant the matter to proceed for hearing.

21. That the trial magistrate erred in law and in fact to assume by the fact that the 9th interested party was physically present in court service was effected on her and directed the matter to proceed.

22. That her attendance at court on that material day was in her capacity as the legal officer of the 5th and 6th interested parties and not in her personal capacity, as she had accompanied the 4th interested party who happens to be her boss and was under his instructions.

23. It was submitted that having the hearing of the contempt of court application proceed without serving the advocate on record was in disregard of the 9th interested party’s rights accorded by the Article 50(2) ( c ) ,( j) of the Constitution; that warrants the right to have adequate time and facilities to prepare a defence, and the right to be informed in advance of the evidence to be relied on by the adverse party and access to it.

24. It was submitted that Article 50 is anchored on Rules of Natural justice, one of its essential principles being audi alteram partem; and that therefore the person who has to be affected by a decision has a right to be heard. In this instant case, it was submitted that the decision to be reached by the court would affect the 9th interested party directly so she, through her advocate on record had a right to be heard.

25. It was submitted that the arbitrary decision of the court to order the advocate on record for the 9th interested party to proceed without being served with the application, fettered her right to be heard, since the advocate did not know or have within his knowledge the contents of the application to which he was ordered to reply to.

26. The 9th interested party’s right enshrined in the constitution was infringed exposing her to judgment being entered against her and her interest.

27. There was no response and or submissions by the respondent Chief Magistrate Nairobi.

DETERMINATION

32. I have carefully considered the exparte applicant’s notice of motion as amended and in line with the Constitutional and statutory provisions and case law relied on by the parties’ advocates in their submissions. I have given equal consideration to the respondent and interested parties’ contentions in this matter. In my humble view, the issues that flow for determination are:

1. Whether the judicial review orders sought are available to the exparte applicants;

2. Whether the exparte applicants had an alternative remedy or forum for ventilating their grievances;

3. Whether the magistrate’s court had jurisdiction to hear and determine the suit and therefore the application for contempt against the exparte applicants;

4. What orders should this court make?

5. Who should bear costs of the application?

33. On the first issue of whether the orders sought in the amended notice of motion are available to the exparte applicants, Order 53 Rule (1) of the Civil Procedure Rules provides:

(1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.”

34. In the instant case, the exparte applicants in their chamber summons for leave to apply dated 14th May 2015 sought for two Judicial Review orders of certiorari and prohibition and leave was so granted by Honourable Justice Korir on 20th May 2015 after an interpartes hearing. There was no prayer for leave to quash contempt of court proceedings and more so, the prayer No. 4 of the amended notice of motion is in the nature of mandamus, directing or compelling the return of the shs 2,000,000 paid by the exparte applicant pursuant to the orders of 5th June 2015 by the Resident Magistrate in Nairobi CM CC 1436/2015. No leave was ever sought and or obtained to institute such Judicial Review prayers of mandamus.

35. In addition, the events of 5th June 2015 where the trial magistrate convicted/cited the exparte applicants for contempt of court and fined them each shs2,000,000 came long after leave to institute these Judicial Review proceedings on 20th May 2015 had been granted. No further leave to apply for the orders subsequent to the leave initially granted by Hon Justice Korir was ever sought or granted.

36. The provisions of Order 53 Rule 1 of the Civil Procedure Rules are clearly prohibitive such that leave must be sought and obtained before any Judicial Review order of mandamus, certiorari, and prohibition can be sought and or obtained otherwise the application would be rendered incompetent and a nullity.

37. In this case, prayers Nos. 2 and 4 of the amended notice of motion being for certiorari and mandamus are not grounded on any leave of court sought and therefore those prayers cannot stand in these proceedings. Accordingly, the two prayers are hereby struck out. Iam fortified by the persuasive decision by Odunga J in Michael Mungai vs Attorney General & 9 Others[2015] e KLR where the learned judgeobserved as follows, regarding the nature of Judicial Review orders, and I agree.

“……A party in my view ought not to invoke public law proceedings in order to enforce reliefs which ought to be enforced by way of private law proceedings such as execution proceedings such as execution proceedings under order 22 of the Civil Procedure Rules save in circumstances under which a relief by way of mandamus is the only available remedy. Judicial Review, it has been said time and again is a relief of last resort and ought not to be treated as an alternative mode of redress to remedies available under the Civil Procedure or law process.”

38. Accordingly, before any application for Judicial Review orders specified in Order 53 Rule 1 of the Civil Procedure Rules is made, unless brought specifically under a Constitutional Petition pursuant to Article 23 of the Constitution, or as a declaration or a directive under the Fair Administrative Action Act No 4 of 2015, prior leave of court to file must be sought and obtained otherwise such an application would be rendered fatally incompetent.

39. In the instant case, I have no hesitation in finding that prayers No. 2 and 4 of the amended chamber summons dated 21st October 2015 are incompetent as they are predicated on Order 53 of the Civil Procedure Rules hence leave of court ought to have been sought and or obtained to institute or include those prayers.

40. The second aspect of my analyses of the pleadings is that the exparte applicants, on filing the notice of motion on 21st September 2015 vide leave granted on 22nd September 2015 extending the time for filing of the said notice of motion out of time, they set out grounds upon which the application was predicted.

41. Order 53 Rule 2 of the Civil Procedure Rules provides that:

“ An application for such leave as aforesaid shall be made exparte in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.”

42. Under Order 53 Rule 4 of the Civil Procedure Rules:

“ 4(1) copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement.

(2) The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavit.

43. From the above provisions of the law, it is clear that the reliefs sought and grounds upon which that(those)reliefs are predicated must be contained in the statutory statement and nowhere else, unless leave is sought and obtained to amend the statutory statement.

44. In the instant case, the amendment was done to the substantive notice of motion and not to the statutory statement. Accordingly, this court’s finding is that the prayers/grounds/reliefs sought in the amended notice of motion, and which were not contained in the original chamber summons for leave and or statutory statement cannot be the basis upon which the application or substantive motion could be predicated, and, therefore, the court would not accept those additional prayers and or grounds and reliefs in the amended notice of motion to stand.

45. In other words, this court would only be inclined to consider the following prayers and grounds upon which leave was granted by Honourable Justice Korir, as per the chamber summons dated 14th May 2015:

1. That the applicants Jeff Koinange and Tonny Gachoka be granted leave to apply for judicial Review and an order of certiorari to remove into the High Court and quash the decisions of the Resident Magistrate Milimani purporting to exercise powers of the Chief Magistrate Court given on 13th May 2015 ordering that the applicants be arrested.

2. That the applicants be granted leave to apply for Judicial Review order of prohibition prohibiting the said Chief Magistrate’s court or any other subordinate court from further hearing the Chief Magistrate’s Court Civil Case No. 1436 of 2015 between Kwacha Group of Companies, Jimi Wanjigi and Sani Mbui Wanjigi who are the plaintiffs and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Limited, Tonny Gachoka, Nation Media Limited and You Tube who are the defendants.

46. According to the statutory statement annexed to the chamber summons for leave, the reliefs sought are, material to this ruling:

1. That the applicants Jeff Koinange and Tonny Gachoka be granted leave to apply for Judicial Review and an order of certiorari to remove into the High court and quash the decision of the Resident Magistrate Milimani purporting to exercise powers of the Chief Magistrate Court given on 13th May 2015 ordering that the applicants be arrested.

2. That the applicants be granted leave to apply for Judicial Review order of prohibition prohibiting the said Chief Magistrate’s Court or any other subordinate court from further hearing the Chief Magistrate’s Court civil case No. 1436 of 2015 between Kwacha Group of Companies, Jimi Wanjigi and Sani Mbui Wanjigi who are the plaintiffs and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Limited, Tonny Gachoka, Nation Media Limited and You Tube who are the defendants.”

47. And the grounds relied upon, as per the said statutory statement are that:

1. The Honourable Court of Resident Magistrate lacks jurisdiction to try, determine and punish for contempt;

2. The Chief Magistrate Court lacks jurisdiction to try and determine civil suit No. 1436 of 2015 on account of the nature of the prayers sought in the plaint.

3. The decision of the Honourable Resident Magistrate ordering the arrest of the 1st and 2nd applicant was made in breach of the Rules of natural justice.

4. The Honourable Resident Magistrate’s order was biased and was not arrived at after a fair and impartial hearing.

5. The decision of the Resident magistrate to proceed in the absence of the applicants and their advocate was wrongful

6. The applicants were not given any or any sufficient opportunity to show cause why an arrest warrant should not be issued.

7. The applicants were denied due process;

8. The decision of the Honourable Resident Magistrate is manifestly capricious, unjust, arbitrary, and unfair to the applicants.

9. The decision of the Resident Magistrate was made without full disclosure of material fact.”

48. In the amended chamber summons, the exparte applicants retained prayers No. C (cited above) in the chamber summons. They also retained prayer No.D. However, they added the following prayers which were never part of the reliefs sought in the chamber summons for leave:

1. An order of certiorari to remove into the High Court and quash the proceedings in Nairobi Chief Magistrate’s Court Civil case number 1436 of 2015 before the Resident Magistrate Milimani and the decision of 5th June 2015 by which the learned Resident Magistrate found the exparte applicants in contempt of court and imposed upon then a fine of kshs 2,000,000 and in default a prison term of six months.

2. An order that the sum of kshs 2,000,000 paid by the 1st esparto applicant pursuant to the orders of 5th June 2015 by the Resident Magistrate in Nairobi Chief Magistrate’s Court civil case number 1436 of 2015 be forthwith returned to the 1st exparte applicant.

49. Among the grounds upon which the amended notice of motion was predicated upon, compared with the grounds relied on and as set out in the statutory statement, which was never amended, the following grounds were added.

a) Made fundamental errors of law.

b) Made fundamental errors of fact.

c) Ignored pertinent and material facts

d) Acted in abuse of power

e) Misinterpreted the law and applied the same disproportionately to the extreme detriment of the exparte applicants.

50. I reiterate that Order 53 of the Civil Procedure Rules requires that the reliefs sought and grounds relied upon in the chamber summons for leave and the statutory statement are the ones which an exparte applicant would be permitted to rely on in the substantive NOTICE OF MOTION and not new grounds unless the statement is amended to include those new grounds or reliefs and or unless a new application for leave on the new prayers is filed and leave granted to apply for the new prayers.

51. It therefore follows that the extra reliefs and grounds contained in the amended notice of motion cannot stand for determination and I proceed to strike them out of the notice of motion amended on 21st October 2015 leaving only the prayers that relate to the leave to apply as granted by Hon Korir J. which are:

(c ) That certiorari to remove into the High Court and quash the decision of the Resident Magistrate Milimani purporting to exercise powers of the Chief Magistrate Court given on 13th May, 2015 ordering that the applicants be arrested:

(d) Prohibition do issue prohibiting the said Chief Magistrate’s Court or any other subordinate court from further hearing the Chief Magistrate’s Court civil case No. 1436 of 2015 between Kwacha Group of Companies, Jimi Wanjigi and Sani Mbui Wanjigi who are the plaintiff and Sam Shollei, Jeff Koinange, Kenya Television Network, Standard Group Ltd. Tony Gachoka, Nation Media Limited and You Tube who are the defendants.

52. The second issue for determination is whether the exparte applicants had an alternative remedy/forum which they should have explored instead of filing for judicial review. The answers to this issue also settles the objections raised by the 1st, 2nd and 3rd interested parties to the merits of the judicial review orders sought herein pursuant to the leave granted on 20th May, 2015 to the effect that:

1. The Judicial Review court is a special court with specific/special powers and it is only available to deserving cases and the exparte applicants do not fall within the purview of the specific/special powers of the Judicial Review Court;

2. The Judicial Review Court is not an appellate court and the issues raised in the application should be heard and determined by the appellate Civil Division of the High Court; and

3. Judicial Review remedies are only available to a party who has no other avenue of redress but the exparte applicants have other avenues of redress/addressing the issues raised can be addressed appropriately through the Appellate Division of the High Court/ appellate process.

53. The above grounds of opposition in essence establish one point or issue for determination namely, whether Judicial Review remedies are available to the exparte applicants where there is an effective alternative remedy.

54. According to the exparte applicants, the Judicial Review application is brought on the basis of Article 165(6) of the Constitution which provides that:

“ The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court.”

55. To that extend, it was submitted that the subordinate court lacked jurisdiction to entertain contempt of court proceedings as Section 5 of the Judicature Act only confers jurisdiction on the High Court and the Court of Appeal to hear and determine contempt proceedings hence, the High Court has the supervisory jurisdiction to quash any proceedings that are commenced without jurisdiction and to prohibit such proceedings.

56. On the other hand, the interested parties maintain that there is an efficacious remedy by way of an appeal since what the applicants are seeking to unseat are the merits of the decision of the subordinate court and that in such a case, Judicial Review remedy would not lie as it is a discretionary remedy.

57. Further, the interested parties contend that the power of the trial court to punish for contempt of court orders is derived from Section 63 of the Civil Procedure Act which provides:

“63. In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed:

1. …….

2. ………..

3. Grant a temporary injunction and incase of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.”

58. However, the applicant’s rejoinder is that the magistrate’s courts have no power to punish for contempt of court hence the issue for determination is that of want of jurisdiction and not the merits of the decision of the trial court.

59. I will nonetheless come back to that issue of jurisdiction at a later stage, as I must determine whether the exparte applicants had an effective remedy and that therefore they ought to have pursued an appeal instead of invoking Judicial Review remedies.

60. It is now settled law that where the Constitution or any law provides a procedure for settlement of disputes, that procedure shall be followed before resort to the High Court or any other procedure provided by law. That, in essence, is the effect of Articles 50(1) and 159(2) of the Constitution which provides that:

“ 50 (1) Every person has the right to have any dispute that can be resolved by the applicant of law decided in a fair and public hearing before a court or, if appropriate, another independent or impartial tribunal or body.”

61. Under Article 159(2) of the Constitution, in exercising judicial authority, the courts and tribunals shall be guided by the following principles:

a) Justice shall be done to all, irrespective of status:

b) Justice shall not be delayed;

c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause

d) Justice shall be administered without undue regard to procedure technicalities and

e) The purpose and principles of this Constitution shall be protected and promoted.

62. In Samson Chembe Vuko V Nelson Kilumo& 2 others& 2others [2016] e KLR the Court of Appeal, citing other decisions with approval, among them: Speaker of the National Assembly Vs Karume [2008] 1 KLR 425 where the Court of Appeal held, inter alia:

“……..where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or the Act of Parliament, that procedure should be strictly followed.”

63. In Mutanga Tea& Coffee Company Ltd vs Shikara Limited &Another [2015] e KLR the Court of Appeal reiterated the foregoing as follows:

“…….where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or the Act of Parliament, that procedure should be followed….And further held as follows……

“…….this court has in the past emphasized the need for aggrieved parties to strictly follow any procedures that are specifically prescribed for resolution of particular disputes (Speaker of the National Assembly V Karume (supra) was a 5(2) (b) applicant for stay of execution of an order of the High Court issued in Judicial Review proceedings rather than in a petition as required by the Constitution.” In granting the order, the court made the often quoted statement :“ where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.(See also Kones v Republic &Another exparte Kimani Wanyoike& 4 Others[2008] e KLR (ER) 296. It is readily apparent that in the above cited cases the court was speaking on issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resold to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.

The basis for that view is first, that Article 159 (2) (e) of the Constitution has expressly recognized alternative forms of alternatives forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article 159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reaching of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3) (a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms. Secondly, such alternative dispute resolution mechanisms normally have an advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner…..

…..We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of an appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2) ( c) and the very raison d’etre of the mechanisms provided under the two Acts……”

64. Section 75 of the Civil Procedure Act provides for orders from which appeal lies as a matter of right. The Section stipulates:

“75(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted:

a) …….

b) ………

c) ………

d) ………..

e) …………

f) …………

g) An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest of detention is in execution of a decree.”

65. In the instant case, the order and proceedings which are subject of these Judicial Review proceedings are the proceedings for contempt of court and orders for committal of the applicants to prison for contempt of court which the applicants allege that the subordinate court had no jurisdiction to hear and determine by application of Section 63 of the Civil Procedure Act. The substantive proceedings are a suit premised on the law of the tort of defamation.

66. Accordingly, it was submitted by the 1,2,and 3rd interested parties' counsel on record that the matter/dispute in the lower court being of a civil nature in the nature of defamation, any party aggrieved by the decision made by the subordinate court in the contempt proceedings which would lead to imposition of fine or directing the arrest or detention is in execution of a decree, such party had an unfettered right of appeal to the High Court and not apply for judicial review.

67. It cannot be disputed that Judicial Review is not an appellate procedure, since it does not determine the merits of the decision but the procedure as stipulated in the many cases cited by both parties' counsels and especially the cases cited by the 1, 2 and 3 interested parties' counsel Mr Nyamai, and which decisions are echoed in the Samson Chembe(supra) case and the Mutange Tea(supra case). Therefore, where there is an efficacious procedure provided for in law for challenging the decision of the subordinate court, it is incumbent upon the aggrieved party to follow that procedure.

68. The exparte applicants complain that even if the subordinate court had jurisdiction to punish them for contempt of court, the trial magistrate did not follow the fair procedure for such punishment, as stipulated in Article 50 of Constitution on the right to a fair trial in that:

i. The appellants were neither personally served nor was the order they allegedly breached brought to their full knowledge and attention considering the gravity and consequences of contempt.

ii. The conduct of the learned magistrate during the hearing of the application for contempt, the delivery of the ruling past the official court hours on a Friday afternoon behind closed doors, and the amount of fine meted out go to show that she was biased against the contemnors and her ruling was vindictive and predetermined.

iii. The learned magistrate failed to consider statements under oath and discriminated how she handled and singled out the exparte applicants from the other defendants/alleged contemnors.

iv. The fine imposed on the exparte applicants was exorbitant considering the precedents of this court on contempt.

69. All the above matters complained of, including the claim that the exparte applicants were not served with the orders allegedly disobeyed and the exorbitance of the fine imposed are matters that require reassessing affidavit evidence and reevaluation of that evidence by the court exercising appellate jurisdiction as stipulated in section 78 of the Civil procedure Act on powers of the appellate court hence the delving into the merits of the decision of the trial magistrate and therefore Judicial Review remedy would not resolve them.

70. In addition under Section 9(2) of the Fair Administrative Action Act No. 4 of 2015,the High Court or a subordinate court under Subsection (1) is expressly prohibited from reviewing and (2) “shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High court or a subordinate court shall, if it is not satisfied that the remedies referred to in Subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under Subsection (1)

(4) Notwithstanding Subsection (3) the High Court or subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice….”[emphasis added].

71. From the above provisions of the law, it is clear that even the Fair Administrative Action Act mandates an applicant to show that they have exhausted the alternative remedies available under any other written law or avenue before resorting to the judicial review remedies court. However, the onus is on the applicant to demonstrate to the court that he ought to be exempted from resorting to the available remedies; and on application.

72. In this case, no application for exemption to exhaust the alternative remedies was made by the exparte applicants. As earlier stated, the orders and proceedings which are being challenged by the exparte applicants before this court are appealable as of right under Section 75 of the Civil Procedure Act and even if there was no such automatic right of appeal, leave of court would be sought and obtained to lodge an appeal. In Republic vs National Environment Management Authority [2011] e KLR it was held that where an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for Judicial Review would be granted. The Court of Appeal stated:

“ The principle running through these cases is that where there was an alternative remedy and especially where parliament had provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review be granted, and that in determining whether an exception should be mad and Judicial Review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case, and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. ( See Republic v Birmingham City Council Exparte Ferrero Ltd case), the learned judge, in our respective view, considered those structures and came to the conclusion that the appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute, with respect , we agree with the judge.”

73. In Revital Healthcare ( EPZ) Ltd & Another Vs Ministry of Health & 5 Others [2015] Emukule J,citing with approval the case ofDamian Belforite V the Attorney General of Trinidad & Tobago CA 84/2004 held:

“ where there is a parallel remedy, constitutional relief should not be made unless the circumstances of which the complaint is made include some feature which made it appropriate to take that course. As a general rule there must be some feature, which, at least arguably indicates that the means of least redress otherwise available would not be adequate to seek constitutional relief in the absence of such feature would be misuse, abuse of the court process.”

74. Mwera J ( as he then was) in Safmarine Container N.V. of Antwerp vs Kenya Ports Authority Mombasa High Court Civil Case No. 263 of 2010,held inter alia:

“ it is not only the Constitution that can limit or confer jurisdiction of the court but that any other law may by express provision confer or limit that jurisdiction.

75. Clearly, the above decisions set the stage that where there is a particular procedure provided under the Constitution or any other written law, then unless it is shown that the alternative remedy is ineffective, and or inapplicable to the dispute before the court, the court ought to ensure that the dispute is resolved in accordance with the relevant statute. This is further fortified by the Court of Appeal decision in Speaker of the National Assembly Vs Karume [supra]cited with approval in the recent decision by the same court in Samson Vuko Vs Nelson Kilumo& 2 Others(supra) andin Mutange Tea &Coffee Company Ltd vs Shikara Ltd & Another (supra).

76. For the above reasons, I find that the applicants had an efficacious alternative remedy by way of an appeal to challenge the merits of the decision(s) of the trial magistrate which decisions were made at different stages of the hearing in the civil suit, which options they should have pursued to its logical conclusion.

77. On the issue of whether or not the subordinate court had jurisdiction to hear and determine contempt proceedings against the exparte applicants, the applicants maintained that Section 5 of the Judicature Act only confers jurisdiction in the High Court and Court of Appeal to punish for contempt of court.

78. However, the respondents and interested parties opposing these proceedings contended that the subordinate court being the trial court had power under Section 63 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 40 Rule 3 of the Civil procedure Rules to punish for contempt of Court.

79. It is worth noting that these proceedings were first instituted in court on 15th March 2015, which was before enactment of the Magistrate’s Court Act No. 26/2015 on 15th December 2015 with commencement date of 2nd January 2016. It was also prior to the enactment of the contempt of the Court Act No. 46 of 2016 on 23rd December 2016 which came into effect on 13th January 2017. Section 10 of the Magistrate’s Court’s Act vests into the Magistrate’s courts power to punish for contempt not only in the face of the court but : 10(3) in the case of civil proceedings, the willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court constitutes contempt. The above power, is subject of any other law.

80. Sections 5 and 6 of the contempt of Court Act, 2016 empowers the subordinate court to punish for contempt of court, whether it is contempt in the face of the court, or for disobedience of any lawful court orders.

81. In addition, Section 36 of the latter Act provides that the provisions of the Act shall supersede any other written law relating to contempt of court. Such written law, in my view, include Section 5 of Judicature Act, Cap 8 Laws of Kenya, as stipulated in Section 38 of the contempt of Court Act, among other written laws.

82. In referring to the above provisions of the law which came into effect after 15th May 2015 and 13th January 2017 respectively, I am not by any means applying the law retrospectively but just to alert the parties that there is now express power and jurisdiction of the subordinate courts to punish for contempt of court, stipulated in the contempt of Court Act,2016 and the Magistrate’s Court’s Act,2015.

83. Therefore the question is whether prior to the enactment of the above pieces of legislation in December 2015 and January 2016 respectively, the subordinate court had power to punish for contempt of court.

84. Before answering that question, it is important to understand what contempt of court is. The Judicature Act provides for contempt of court in Section 5 and empowers only the High Court and the Court of Appeal to punish for contempt. However, the Act does not define what contempt of court is. Nonetheless, the newly enacted contempt of Court Act,2016 defines contempt under Section 4 thereof to include:

a) Civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court:

b) Criminal contempt which means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other Act which

i. Scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court.

ii. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or

iii. Interferes or tends to interfere with , or obstructs or tends to obstruct the administration of justice

iv. In any case not relating to civil or criminal proceedings as contemplated under Subsection (1) an act that is willfully committed to interfere, obstruct or interrupt the due process of the administration of justice in relation to the court, or to lower the authority of a court, or to scandalize a judge, judicial officer in relation to any proceedings before the court, on any other manner constituted contempt of court.

85. Courts have over time defined contempt of court in much more direct terms and for instance in Stewart Robertson Vs H. M’s Advocate, 2007HCA 63, where Lord Justice Clerk stated:

“ contempt of court is constituted by conduct that denotes willful defiance of a disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.”

86. The Black’s Law Dictionary 9th Edition defines contempt of court as

“ conduct that defines the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment”

87. It is not in dispute that Section 5 of the Judicature Act ( now repealed) by the contempt of Court Act, 2016 expressly empowers only the High Court and the Court of Appeal to punish for contempt of court.

88. However, Section 63(1) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules both give the court whose orders are disobeyed in breach of an order of temporary injunction the power to punish for contempt. That power is limited to breach of a temporary injunction only.

89. The Section 63(1) states:

“ In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed-

(a)Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.

90. Under Order 40 Rule 3(1) of the Civil Procedure Rules,

“ In case of disobedience or breach of any of such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such a person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.”

91. The Senior Resident Magistrate in her ruling of 5th June 2015 wherein a preliminary objection had been raised challenging her jurisdiction to hear and determine contempt of court proceedings relied on the above civil Procedure Act and Rules to find that she had power to punish for contempt of court in view of the fact that the application was brought under Section 63(1) of the Civil Procedure Act and Order 40 of the Civil procedure Rules and that therefore no leave was required, or service upon the Attorney General unlike an application brought under Section 5 of the Judicature Act.

92. From the above provisions of the law, Iam persuaded that the trial magistrate had jurisdiction to punish for contempt of court where the alleged disobedience was in respect of a temporary injunction granted pursuant to Order 40 of the Civil Procedure Rules.

93. The question here is, however, whether the alleged breach related to a temporary injunction. From the order of 20th March 2015, the subordinate court barred the defendants who are the applicants herein from publishing material that is defamatory to the interested parties herein. The court also issued a mandatory injunction against the exparte applicants and others, compelling them to pull down from the various social media platforms defamatory material allegedly published of and concerning the interested parties herein.

94. The Court of Appeal quite recently in the case of Ramadhan Salim& Another [2016] eKLRwhile discussing the issue of whether or not the subordinate court has jurisdiction to punish for contempt of court held;

“…….To our mind, the issue in this appeal that call for our determination is whether the two courts below lacked jurisdiction to punish for contempt of court in the circumstances of this case.

From its ruling on the preliminary objection, the trial court bought the respondents argument that it could not invoke Section 63(3) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules to cite the respondents for contempt since the Act and the Rules were subsidiary to the Judicature Act. Furthermore, the court reasoned that the appellant could not also invoke the same provision of the law since the order given was not in the nature of a temporary injunction for which it had powers to punish, but a mandatory injunction. That the jurisdiction to punish doe breach of a mandatory injunction lay with the High Court or the Court of Appeal as per Section 5(1) of the Judicature Act.

We think at this juncture it is necessary to revisit the various types of injunctions. This court has recently in the case of New Ocean Transport Limited &Another v Anwar Mohammed Bayusuf Ltd [2014] e KLR expounded on the different types of injunctions . We stated:-

“ We appreciate that an injunction is an order of the court directing a party to the proceedings to do something or refrain from doing a specified act. It is granted in cases in which monetary compensation does afford an inadequate remedy to an injured party. See Halsbury’s Laws of England 3rd Edition VOL 21 at page 343. Basically, there are 2 types of injunctions; positive and negative. The positive injunction would direct a party to do something whereas a negative one will restrain such a person from doing something. Among the positive injunctions will be mandatory injunction. This injunction orders some act to be done. Part of this family is the restorative injunction being sought by the applicants on the instant application. This type of injunction requires the person against whom it is directed to undo a wrongful act, to restore the status quo ante so that the damage does not continue. Then there is the mandatory injunction per se which compels a party to carry out some positive act to remedy a wrongful omission. As for negative injunctions, these would include prohibitory, perpetual interlocutory and QuiaTimet Injunctions.” [emphasis added].

“ From the foregoing, it is clear that the injunctive order given by the learned magistrate on 5th February 2015 was in the nature of mandatory injunction as it required the respondents to restore to the appellant the matatu and the 2nd respondent in particular to retransfer the matatu to the appellant at her expense. Did the learned magistrate then have jurisdiction to cite and punish the alleged contemnors for the breach.”[emphasis added].

95. The same Court of Appeal, citing with approval its own decision in Kyoga Haulers Limited V Long Distance Truck Drivers & Allied Worker Union[2015] e KLRwhere it held:

“ The power to deal with contempt of court is provided for under Section 5(1) of the Judicature Act, Section 63( c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules. Of importance in the determination of this issue is however Section 5(1) of the Judicature Act, since Section 63( c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules are concerned with disobedience of an order of temporary injunction and resultant consequences which are punishment in the form of imprisonment or attachment and sale of the contemnor’s property [emphasis added by the Court of Appeal].

96. Again the Court of Appeal in the Ramadhan Salim& Another [2016] eKLR cited its own decision ( constituted differently) in Christine Wangari Chege v Elizabeth Wanjiru Evans & 11 Others [2011] e KLR, wherein the Court of Appeal expressed itself as follows:-

“……the only statutory basis of contempt of court law in so far as the Court of Appeal and the High Court are concerned d is Section 5 of the Judicature Act. In addition, Section 63(1) of the Civil Procedure Act provides that disobedience of an order of temporary injunction will attract punishment in the form of imprisonment or attachment and sale of the contemnor’s property.”[emphasis added]. Besides,Section 5(1) of the Judicature Act provides that:

“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England and that power shall extend to upholding the authority and dignity of subordinate courts.”

97. After citing the above decisions and statutory and procedural provisions of the law, the Court of Appeal inRamadhan Salim& Another [2016] eKLRconcluded that the magistrate did not have jurisdiction to entertain the contempt of court proceedings as he correctly held and that jurisdiction belonged to the High Court or Court of Appeal which exercises that jurisdiction , extending it to contempt committed in the subordinate court.

98. The Court of Appeal in Ramadhan Salim& Another [2016] eKLR went further to state that the only jurisdiction the magistrate’s court could exercise when dealing with contempt of court is, if it is committed in the face of the court or as set out in Section 10 of the 2015 Magistrate’s Court’s Act.

99. The same Court of Appeal went further and held that:

“However, unlike the magistrate’s court which had no powers to punish for contempt, save when it was contempt infacie or if there was disobedience of temporary injunction, the High Court had no such limitation.That jurisdiction is expressly provided for in Section 5(1) of the Judicature Act….”

100. From the above decisions of the Court of Appeal on the issue of jurisdiction to punish for contempt of court, it is clear that whereas prima facie, the subordinate court, prior to the present contempt of court Act 2016 , and the Magistrate’s Court Act, 2015, did not have jurisdiction to punish for contempt of court as stipulated in Section 5(1) of the Judicature Act, the court nonetheless had the power to punish for contempt of court committed in the face of the court and where the order contravened was in the nature of a temporary injunction only, and not where a mandatory injunction was concerned.

101. Examining the order issued by Honourable R.A. Oganyo (Mrs) Chief Magistrate on 20th March 2015, the orders read as follows; which orders became the subject of contempt proceedings:-

i. That the application dated 20th March 2015 be and is hereby certified as urgent .

ii. That leave be and is hereby granted to the plaintiff/applicant to serve the 5th and 7th defendant/respondent with all the pleadings, and any court orders and hearing dates issued by this Honourable Court through substituted service (sic) through the Daily Nation Newspapers, the Star, the people, Citizen or any other daily Newspaper with video circulation;

iii. That further to or in the alternative to prayer (ii) above the plaintiffs be and are hereby granted leave to serve the 7th defendant/respondent issues raised in the said slanderous/defamatory statements/words/matters/utterances that were published, uttered and broadcasted on or about 12th March 2015 and or on 13th March 2015 in “JK LIVE” show and or on 15th March 2015 and thereafter in the 5th defendants/respondents hash tag in “you tube” in respect of the plaintiffs pending interpartes hearing on 27th March 2015.

iv. That a temporary mandatory injunction be and is hereby issued compelling the 7th Defendant/respondent and or all the defendants to pull down andor remove from the internet the slanderous /defamatory statements/utterances that the 5th You Tube with all the pleadings, any court orders and any hearing dates issued by this Honourable court by serving the same on You tube through the internet.

v. That a temporary injunction be and is hereby issued restraining the defendant, jointly and severally, their agents and or servants and or employeesand or business associates from writing , printing, broadcasting, republishing or causing to be written, printed , published , and or causing to be broadcasted any words/statements/utterances which are in any manner whatsoever injurious and or libelous and or slanderous and or defamatory to the plaintiffs and in particular in relation to the and shall supply on demand copies of any such further affidavits.

102. From the above Order No ivissued by the learned magistrate, it is clear that she granted a mandatory injunction compelling not only the 7th defendant Yu Tube but also the rest of the defendants compellingthem to pull down from the internet the alleged defamatory /slanderous material of and concerning the applicants/plaintiffs in that suit.

103. The provisions of section 5 of the Judicature Act and case law cited above are clear that the magistrate’s court had no jurisdiction to punish for contempt of court where the alleged breach related to violation of a mandatory injunction.

104. I have no reason to differ with the law as interpreted by the Court of Appeal quite recently, albeit it is ironical that a court of law would have power to grant an order which it has no power to enforce when such order was disobeyed. However, it is now clearer with the enactment of the Magistrates Courts Act and the Contempt of Court Act that indeed in Kenya, the law of contempt was hinged on English law and the Judicature Act hence the need to change that position significantly.

105. Accordingly, I have no hesitation in finding that the magistrate’s court did not have jurisdiction to commit the applicants for contempt of court where a mandatory injunction was sought and therefore should have referred the matter to the High Court for consideration and albeit the court had jurisdiction to punish for contempt for breach of a temporary injunction , as punishment for contempt on both limbs could not be split, it would have been appropriate for the trial court to pronounce itself on the issue and decline jurisdiction and refer the contempt proceedings to the High Court for consideration and determination.

106. Jurisdiction is everything without which a court of law must down its tools. See OWNERS OF MOTOR VESSEL LILIAN ‘S’ v CALTEX (K) LTD (1989) KLR 1.

107. In my humble view, as the magistrates’ court lacked jurisdiction to conduct contempt of court proceedings where a mandatory injunction was sought and obtained and which injunction was allegedly breached, and as the trial magistrate's ruling does not specify whether she was punishing the applicants for being in contempt of the interlocutory injunction only, this is a proper case for invocation of the provisions of Article 165(7) of the Constitution to call into the High Court those proceeding that were conducted by the subordinate court without jurisdiction and declare them a nullity, to ensure the fair administration of justice. I am fortified by the English case of Macfoy Vs United Africa Company Ltd [1961] 3 ALL ER1169 at 1172 where the court held interalia:

“If an act is void, it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.”

108. In this case, to declare proceedings of the lower court a nullity does not require leave of this court as the matter has been brought to the attention of the court which has the power vested in it by the Constitution to make such orders or give any direction it considers appropriate to ensure the fair administration of justice and to prevent abuse of court process. In this case, the appropriate order would be to declare the contempt proceedings which were conducted by the subordinate court (Mrs. M. Chesang) a nullity and I so declare and order those proceedings a nullity.

109. Furthermore, and quite obviously, the court notes that the Hon Resident Magistrate upon finding the applicants in contempt of court proceeded to commit them before they mitigated and only allowed mitigations after pronouncing the sentence which was irregular and a denial of the right to a fair trial which right is not limitable and which right is espoused in Article 50 of the Constitution. Contempt proceedings are quasi criminal proceedings and therefore on conviction, one’s liberty is at stake as he could be committed to prison for a term not exceeding six months. It therefore follows that before the court pronounces sentence upon finding one in contempt of court, the court must first accord the contemnor an opportunity to mitigate. This was not done by the trial magistrate.

110. On the whole, I find that not only was the Resident Magistrate without jurisdiction in conducting contempt of court proceedings for alleged breach of a mandatory injunction matter but also that the whole process of committal of the applicants for contempt of court was a nullity and I must so declare, as the procedure adopted by the trial magistrate violated the applicant’s right to fair trial under Article 50 of the Constitution.

111. Accordingly, whereas this court declines to issue any of the judicial review orders sought in the notice of motion as amended, I invoke the inherent powers of the court and the supervisory jurisdiction of this court under Article 165(7) of the Constitution and declare the contempt of court proceedings conducted by Mrs M. Chesang Resident magistrate a nullity and any consequential orders thereto must be declared a nullity as they were conducted without jurisdiction and in total violation of the exparte applicant’s fundamental rights guaranteed by the Constitution.

112. There was also the issue raised by the exparte applicants that the Trial court had no jurisdiction to hear the suit as framed. The claim before the subordinate court is premised on the tort of defamation. I do not find that the Magistrates Court is devoid of jurisdiction to hear a claim based on defamation of character subject to the pecuniary limits of the damages sought which are only quantifiable at the hearing. I therefore decline to prohibit the subordinate court from hearing the entire suit, noting that although it is claimed that there is a similar matter pending in the High Court, parties can apply for transfer of the subordinate court case to the High Court for consolidation.

113. As none of the parties have been wholly successful, I order that each party shall bear their own costs of these proceedings.

114. Dated, signed and delivered in open court at Nairobi this 27th day of February, 2017.

R.E.ABURILI

JUDGE

In the presence of:

Mr Kithinji h/b for Marete for the 1st exparte applicant

Mr Mwongela for the 2nd exparte applicant

Mr Mogire H/b for Nyamai for the 1, 2, 3 Interested parties

Mr Njuguna H/b for Ms Jan Mohamed for 7th interested party

Mr Mugwe H/b for M r Mayende for 5th and 5th interested parties

CA: George